Chess, Not Checkers: Negotiating from a Position of Power

In our last post, we discussed ten strategies for discovery in complex and multi-case litigations.

ESI protocols have become an important tool for getting parties “on the same page” regarding how discovery will be conducted. While they aren’t necessarily appropriate for every case, they are a vital tool in helping to minimize disputes (or at least expedite them to be resolved earlier in the case) in complex litigation.

However, to successfully negotiate an ESI protocol that is favorable to your needs, it’s important to have certain information at hand so that you can negotiate from a position of power. Not having that information can be costly, as we saw in the case In re StubHub Refund Litig, where the defendant agreed to produce hyperlinked files as modern attachments without realizing the challenges in doing so.

In this post, we’ll discuss the use of ESI protocols in complex litigation and the information needed for negotiation from a position of power.

The Importance of ESI Protocols in Complex Litigation

In complex cases, ESI protocols are particularly important because they provide a roadmap for managing ESI throughout the litigation. Without a clear protocol, discovery in complex cases can become chaotic, leading to disputes, delays, and increased costs. Here are some of the reasons why ESI protocols are essential in complex litigation:

• Ensuring Defensibility: Courts demand a defensible approach to eDiscovery. A well-drafted ESI protocol demonstrates that all parties are committed to preserving and managing data in compliance with legal and ethical standards, reducing the risk of spoliation claims.
• Promoting Efficiency: By outlining specific procedures for data handling, ESI protocols streamline the discovery process. This minimizes confusion, reduces duplicative efforts, and ensures that all parties work from the same framework.
• Preventing Disputes: Topics such as search terms, metadata fields, and privilege logs often lead to discovery disputes; ESI protocols help preempt disagreements in these contentious areas. This is particularly important in complex litigation, where the volume and diversity of data often magnify the potential and scope of discovery battles.
• Controlling Costs: ESI protocols can include measures to manage costs, such as culling irrelevant data early, defining file formats for production, and leveraging generative AI or technology-assisted review (TAR) tools. Proactively addressing these elements reduces the risk of runaway discovery expenses.
• Tailoring to Case Needs: Complex litigation often involves unique circumstances, such as cross-border data or highly sensitive information. An ESI protocol allows parties to address these nuances, ensuring that discovery is tailored to the specific needs of the case.

Preparing to Negotiate an ESI Protocol

To negotiate a favorable ESI protocol, you must be well-prepared in terms of understanding your data, ESI protocol best practices and how various factors can influence the decisions you make. Here are five key areas to consider before entering negotiations:

1. Understand Your Data Sources: Knowing your data and potential challenges associated with it enables your team to mitigate risks associated with those challenges.

• Identify Key Data Repositories: Catalog all potential sources of ESI, including email servers, shared drives, cloud platforms, and mobile devices. Don’t overlook less traditional sources, such as messaging apps being used as shadow IT apps within the organization.
• Understand Data Formats: Determine the formats in which your ESI is stored (such as PDFs, spreadsheets, etc.) and considerations associated with each (such as metadata). This helps ensure that production specifications in the protocol align with your systems.
• Assess Accessibility: Identify any technical or logistical challenges in accessing certain data sources. If retrieving data from legacy systems or collecting hyperlinked files is challenging, it’s better to negotiate accommodations up front than be caught flat-footed downstream.

2. Scope Your Potential Discovery Effort: The scope of discovery depends on custodians, time frames and search terms, so it’s important to estimate potential scope so that you know where to focus any arguments regarding proportional discovery.

• Define and Scope Relevant Custodians: Develop a list of individuals likely to possess relevant information, then conduct custodian interviews to understand what potentially relevant ESI they possess and where it’s located. You may need the information to support proportionality arguments downstream.
• Assess Temporal Scope: Identify the relevant time periods for data collection. Limiting the timeframe can significantly reduce the volume of data without compromising completeness.
• Anticipate Search Terms: Draft preliminary search terms or parameters that align with the case’s key issues. This helps streamline negotiations about search methodologies.

3. Understand Key ESI Protocol Components: If you don’t know what a typical ESI protocol contains, now is the time to find out.

• Production File Formats: Determine which formats will work best for your team. Common production formats include TIFF with metadata overlays or native files with metadata preserved.
• Metadata Fields: Identify which metadata fields are critical for your review and analysis, such as email timestamps, document authors, or file paths.
• Privilege Log Requirements: Understand how privilege logs will be prepared, including whether categorical logs can be used for efficiency.
• Search Methodologies: Familiarize yourself with TAR and keyword search best practices. Be prepared to negotiate the use of advanced tools like GenAI if appropriate.

Craig Ball’s primer titled The Annotated E-Discovery Protocol provides excellent guidance on what an ESI protocol should contain and what issues may occur in negotiations.

4. Consider Data Privacy and Security: In today’s global landscape, you must account for considerations regarding data protection and cybersecurity best practices.

• Sensitive Data: Identify any sensitive information, such as trade secrets, personally identifiable information (PII), or privileged communications. Plan for protective measures, such as confidentiality agreements or protective orders.
• Cross-Border Issues: If your case involves international data, understand the applicable privacy laws (e.g., GDPR) and any limitations on transferring data across borders.
• Cybersecurity: Ensure the protocol includes provisions for secure data transfer, storage, and handling to protect against breaches.

5. Assess Cost Implications: Discovery is expensive, so it’s important to be creative when trying to manage those costs.

• Budget Considerations: Understand your client’s budget constraints and identify cost-saving measures, such as phased discovery or sampling techniques.
• Cost-Shifting Provisions: Consider whether you might need to negotiate cost-sharing or cost-shifting provisions for burdensome discovery requests.

Strategies for Negotiating Favorable ESI Protocols

Once you’ve prepared, the next step is to approach negotiations with a clear strategy. Here are some practical negotiation strategies:

• Pick Your Battles: Courts love cooperation! Working collaboratively with opposing counsel can save time and reduce disputes. Propose reasonable, defensible terms that balance both parties’ needs. Save the disputes for the really important issues.
• Be Specific but Flexible: Avoid vague or overly rigid terms in the protocol. Specify key details, such as production formats and metadata fields, but allow for flexibility to adjust as the case evolves.
• Address Proportionality: Use proportionality principles to negotiate reasonable limits on the scope of discovery, but avoid “boilerplate” objections, which are almost always frowned upon by courts these days. You need to make your arguments with specificity if you want courts to take them seriously.
• Negotiate Protective Measures: Include provisions to safeguard sensitive information, such as confidentiality agreements, clawback provisions, and encryption requirements where appropriate.
• Verify Your Capabilities: Make sure that you can do what you agree to do. It’s a good idea to conduct a test to ensure that your organization can meet the terms you agreed to in the ESI protocol.
• Provide a Fallback Just in Case: While StubHub was initially impacted by their agreement regarding hyperlinked files, they also included a clause in the ESI protocol that enabled it to be modified if “good cause” was demonstrated, which ultimately helped them reverse the earlier ruling that was untenable.

Conclusion

In complex litigation, the stakes are higher than they are in typical litigation cases, which means the stakes for negotiating a favorable ESI protocol are also higher. To negotiate an ESI protocol from a position of power, you need to be well prepared, know when to pick your battles, make proportionality arguments with specificity, and provide a fall back in case you find you’re in an untenable position.

In our last post in this series, we will discuss how future trends in litigation technology are influencing case strategy and may ultimately redefine how complex litigation is planned and conducted!

For more regarding Cimplifi eDiscovery, litigation, and investigations services, click here.

In case you missed any part of this series on complex litigation you can catch up on the entire series below.

Chess, Not Checkers: Strategic Approaches to Complex Litigation

• Key Elements of Effective Litigation Management
• Early Case Assessment and Strategic Planning
• Data Collection Strategies in Complex Litigation
• Navigating eDiscovery with AI and Tech Solutions
• The Human Element
•  Multi-Case Strategies for eDiscovery
• Negotiating from a Position of Power
• Coming Soon: Future Trends in Litigation Technology